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Statute of limitations not tolled in smoker's case 

The California Supreme Court says two physical injuries can, in some circumstances, be considered "qualitatively different" for purposes of determining when the applicable statute of limitations period begins to run.

The Court was asked by the U.S. Court of Appeals for the Ninth Circuit to answer two questions:

- Under California law, when may two separate physical injuries arising out of the same wrongdoing be conceived of as invading two different primary rights?

- Under California law, may two separate physical injuries -- both caused by a plaintiff's use of tobacco -- be considered "qualitatively different" for the purposes of determining when the applicable statute of limitations begins to run?

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NIKKI POOSHS, Plaintiff and Appellant, v. PHILIP MORRIS USA, INC., et al., Defendants and Respondents. (PDF) 

Plaintiff was a cigarette smoker for 35 years, from 1953 through 1987. In 1989, she was diagnosed with chronic obstructive pulmonary disease (COPD), which plaintiff knew was caused by her smoking habit. Nevertheless, she did not sue the manufacturers of the cigarettes that she had smoked, and the statutory period for doing so elapsed.

In 1990 or 1991, plaintiff was diagnosed with periodontal disease, which she knew was caused by her smoking habit. Again, she did not sue the various cigarette manufacturers, and the statutory period for doing so elapsed.

In 2003, plaintiff was diagnosed with lung cancer. This time, she sued. We must decide whether the lawsuit is barred by the statute of limitations, which requires that a suit be brought within a specified period of time after the cause of action accrues. . . .

It is critical to consider the posture in which this matter comes to us. To defeat summary judgment in the federal district court, plaintiff needed to identify an issue of fact that, if decided in her favor, would allow her to overcome defendants‟ statute of limitations defense. (See generally Anderson v. Liberty Lobby, Inc. (1986) 477 U.S. 242, 248; Celotex Corp. v. Catrett (1986) 477 U.S. 317, 322.) The issue of fact that plaintiff identified in the federal district court was that her lung cancer is a disease that is separate from her earlier-discovered COPD and periodontal disease. For example, plaintiff stated “that COPD is a separate illness, which does not pre-dispose or lead to lung cancer and that it has nothing medically, biologically, or pathologically to do with lung cancer.” It is not our role to decide or even question the factual validity of that assertion. Rather, our role is to determine, as a legal matter, whether plaintiff‟s assertion has any relevance under California law for purposes of applying the statute of limitations, for that is the question that the Ninth Circuit asked us to decide. In other words, the Ninth Circuit has asked us to assume plaintiff‟s assertion to be true and to decide, as a matter of California law, whether two physical injuries that constitute separate diseases and that become manifest at different times can be considered “qualitatively different” (Grisham, supra, 40 Cal.4th at p. 645) for purposes of applying the statute of limitations. The answer is “yes.”

As already discussed (see pp. 14-15, ante), we emphasized in Grisham that it made little sense to require a plaintiff whose only known injury is economic to sue for personal injury damages based on the speculative possibility that a then latent physical injury might later become apparent. Likewise, here, no good reason appears to require plaintiff, who years ago suffered a smoking-related disease that is _not_ lung cancer, to sue _at that time_ for lung cancer damages based on the speculative possibility that lung cancer might later arise. Nothing we said in Davies, supra, 14 Cal.3d 502, requires such a rule, and defendants here have cited no case that supports such a rule. Moreover, although we reaffirm the application of the “appreciable and actual harm” rule (id. at p. 514) to cases that do not involve latent diseases, application of that rule to bar plaintiff‟s lung cancer claim before her lung cancer had become manifest would violate the policy underlying the discovery rule, which, as we noted earlier, is to prevent “the limitations period . . . [from] expir[ing] before a plaintiff has or should have learned of the latent injury and its cause.”

It is true that here plaintiff‟s COPD involved the same part of the body (the lungs) as her lung cancer. Nevertheless, as we noted earlier, the Ninth Circuit has asked that in deciding the statute of limitations issue we accept as true plaintiff‟s factual assertion “that COPD is a separate illness, which does not pre-dispose or lead to lung cancer and that it has nothing medically, biologically, or pathologically to do with lung cancer.” (See p. 16, ante.) Assuming that assertion to be true, it does not matter that both diseases affect the lungs. The significant point is that the later-occurring disease (lung cancer) is, according to plaintiff‟s offer of proof, a disease that is separate and distinct from the earlier-occurring disease (COPD). Therefore, under the logic of our decision in Grisham, supra, 40 Cal.4th 623, the statute of limitations bar can apply to one disease without applying to the other.18

IV

In response to the Ninth Circuit‟s inquiry, we conclude that when a later-discovered latent disease is separate and distinct from an earlier-discovered disease, the earlier disease does not trigger the statute of limitations for a lawsuit based on the later disease.

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Court OKs ex-smokers' suits against tobacco firms 

The state Supreme Court breathed new life Thursday into lawsuits by seriously ill ex-smokers, ruling that a former cigarette addict can seek damages from tobacco companies for her cancer despite having failed to sue for earlier smoking-related illnesses.

California law authorized suits against tobacco companies in 1998, after a decade in which the companies enjoyed legal immunity. But many of the suits have been bogged down in federal courts in disputes over whether they were filed in time.

State law requires someone injured by a defective product to sue within two years of the time the victim learned or should have learned of the injury.

The California Supreme Court removed one obstacle to tobacco suits by ruling in 2007 that the two-year deadline started running when former smokers learned that they were ill, and not merely that they were addicted.

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Courts Make It Easier for Smokers to Sue 

The California Supreme Court Thursday made it easier for people with smoking-related illnesses to sue tobacco companies.

The court unanimously ruled that if a person develops two or more diseases from the same cause, such as smoking tobacco, there is a separate statute of limitations for each illness.

The panel issued its ruling in San Francisco in the case of Nikki Pooshs, a Sacramento woman who is seriously ill with lung cancer.

Pooshs, now in her 70s, smoked cigarettes for 34 years from 1953 through 1987.

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Court: Smokers Can Sue Tobacco Companies Over New Illnesses 

Friday, May 06, 2011 On Thursday, the California Supreme Court unanimously ruled that smokers can sue tobacco companies after being diagnosed with a disease such as lung cancer, even if the smoker experienced other smoking-related illnesses years earlier, the Los Angeles Times reports (Dolan, Los Angeles Times, 5/6). . . .

Next Steps

Pooshs' lawsuit now goes back to a federal appeals court.

Lloyd LeRoy, an attorney for Pooshs, said the appellate court is likely to overturn a lower court ruling that dismissed Pooshs' claims. The lawsuit then would return to a district court, where Pooshs would need to prove her claims (Gullo, Bloomberg, 5/5).

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Tobacco lawsuits: State Supreme Court addresses legal deadlines for tobacco lawsuits  

Smokers may sue the tobacco industry once they develop a disease like lung cancer, even if they suffered different smoking-related ailments years earlier, the California Supreme Court ruled unanimously Thursday.

The decision is likely to keep lawsuits alive that might otherwise have been thrown out because of expired legal deadlines and allow new suits to be filed, lawyers who filed the suit said.

In the case before the court, Nikki Pooshs, a former smoker, was diagnosed with chronic obstructive pulmonary disease in 1989 and a couple of years later with periodontal disease, both attributable to smoking. But she did not sue the tobacco industry until she was diagnosed with lung cancer in 2003.

Cigarette makers argued that her suit should be dismissed because the timetable for suing began when she first discovered that smoking had injured her in 1989. State law gives people two years to sue after discovering an injury.

The state high court, in a ruling written by Justice Joyce L. Kennard, concluded that an early disease may not trigger the legal deadline for filing suit if the injury was "separate and distinct" from the later ailment.

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California Supreme Court Ends Big Tobacco’s Campaign to Deny Smokers Justice 

In a decision sparked by Certified Questions from the Federal Ninth Circuit Court of Appeals, the California Supreme Court weighed in on the question of whether the earliest injury from tobacco use started the statute of limitations running for all future injuries as well. The Court's opinion stated that "the earlier disease does not trigger the statute of limitations for a lawsuit based on the later disease." . . .

The Ninth Ciruit Court, in order to clarify the issue, asked Certified Questions of the California Supreme Court, which the Court combined into one:

“When multiple distinct personal injuries allegedly arise from smoking tobacco, does the earliest injury trigger the statute of limitations for all claims, including those based on a later injury?”

In answering the question, the California Supreme Court stated:

"In response to the Ninth Circuit’s inquiry, we conclude that when a later-discovered latent disease is separate and distinct from an earlier-discovered disease, the earlier disease does not trigger the statute of limitations for a lawsuit based on the later disease."

This is a distinct victory for Nikki Pooshs and an important decision clarifying the law in California concerning latent and distinct diseases in tobacco. If the Court had ruled the other way, as tobacco wanted, it would have basically eviscerated the rights of cancer victims—whose cancer was directly caused by tobacco use—for redress for latent injuries. It often takes years for lung cancer from tobacco use to appear and may be preceded by lesser injuries that would not predispose a person to developing cancer down the road.

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UPDATE 1-Ex-smoker can sue for later illness  

California law allows an ex-smoker with lung cancer to sue Philip Morris USA, even though she filed the case years after she had been diagnosed with a separate smoking-related disease, an appeals court has ruled.

Nikki Pooshs was a longtime smoker who was diagnosed with chronic obstructive pulmonary disease in 1989. More than a dozen years later, she was diagnosed with lung cancer, and she sued cigarette manufacturers in 2004.

Cigarette companies had argued that the lawsuit was barred by the statute of limitations, which they said began ticking with the earliest injury.

But on Thursday, the Supreme Court of California unanimously ruled that an earlier disease did not trigger the statute of limitations for a lawsuit brought over a disease discovered later.

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Ex-smoker can sue for later illness: Calif. court  

California law allows an ex-smoker with lung cancer to sue Philip Morris USA, even though she filed the case years after she had been diagnosed with a separate smoking-related disease, an appeals court has ruled.

Nikki Pooshs was a longtime smoker who was diagnosed with chronic obstructive pulmonary disease in 1989. More than a dozen years later, she was diagnosed with lung cancer, and she sued cigarette manufacturers in 2004.

Cigarette companies had argued that the lawsuit was barred by the statute of limitations, which began ticking with the earliest injury.

But on Thursday, the Supreme Court of California ruled that an earlier disease did not trigger the statute of limitations for a lawsuit brought over a later disease.

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California Supreme Court Says Smoker Can Sue Altria Years After Illness  

The California Supreme Court, ruling in a case against Altria Group Inc. (MO)’s Philip Morris, said a smoker who sued the company years after first becoming ill can still proceed with claims against the cigarette maker for lung cancer.

Plaintiff Nikki Pooshs smoked from 1953 through 1957 and was diagnosed with pulmonary disease in 1989 and periodontal disease in 1990 or 1991. She knew that both illnesses were caused by smoking and didn’t file a lawsuit until she was diagnosed with lung cancer in 2003. Philip Morris won a lower court ruling that Pooshs waited too long to file claims.

The California Supreme Court, based in San Francisco, ruled today that the two earlier illnesses were “qualitatively different” from cancer and didn’t trigger the statute of limitations for suing for product liability, misrepresentation, concealment and failure to warn.

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Pooshs v. Altria Group Inc. et al - 3:2004cv01221  

oduct Liability

Cause: 28:1441 Petition for Removal- Product Liability

Jury Demanded By: Defendant

Available Case Documents

Some selected documents for this case are included below.

Date Filed # Document Text

October 1, 2007 113 Court Opinion or Order ORDER SETTING CASE MANAGEMENT CONFERENCE FOR REMANDED CASE. Signed by Judge Phyllis J. Hamilton on 10/1/07. (nah, COURT STAFF) (Filed on 10/1/2007)

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